Gujarat High Court
Gujarat vs Gautam on 30 April, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/11258/2009 85/ 87 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11258 of 2009
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GUJARAT
STATE FERTILIZERS & CHEMICALS LTD & 1 - Petitioner(s)
Versus
GAUTAM
SURENDRA AMIN & 1 - Respondent(s)
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Appearance
:
M/S
TRIVEDI & GUPTA for
Petitioner(s) : 1 - 2.
MR NK MAJMUDAR for Respondent(s) :
1,
NOTICE NOT RECD BACK for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 30/04/2010
ORAL
ORDER
Heard learned advocate Mr. Naik for M/s Trivedi and Gupta on behalf of petitioner, learned advocate Mr. PB Khambholja for Mr. NK Majmudar on behalf of respondent.
In this petition, petitioner has challenged interim order on preliminary point, which has been raised by respondent in respect to legality and validity of departmental inquiry which has been decided by Labour Court, Baroda on 15/7/2009 vide exh 52 in reference LCV no. 1007/1998. The Labour Court has come to conclusion that departmental inquiry, which was initiated against workman Shri Gautam Surendra Amin is held by petitioner against principle of Natural Justice. Therefore, same has been vitiated. On 4/11/2009, this Court has passed following order:
Mr. Trivedi, learned Advocate General relies upon the decision of Bombay High Court in the case of Brihanmumbai Municipal Corporation Vs. Jagnarayan M.Kahar, reported at 2002-IV-LLJ (Supl) 422, whereby it has been held that if the Presenting Officer is not appointed and if the inquiry officer has put up questions to the witnesses, and the cross-examination of such witnesses is permitted to the delinquent, there is no breach of principles of natural justice.
Hence, Notice returnable on 24.11.2009. By ad interim order, it is directed that the final order shall not be passed by the Labour Court until further orders.
Learned advocate Mr. Naik raised contention before this Court that during pendency of departmental inquiry (page 76) dated 12/8/1997, respondent workman was remained present before Inquiry Officer. The Inquiry Officer has asked certain questions to workman whether in departmental inquiry all facilities and accommodation is given to workman or not and for that whether workman is satisfied or not? The answer was given by workman that he has been given all accommodation and facilities by petitioner and he has been satisfied with proceeding of departmental inquiry. The second question was asked by Inquiry Officer whether he wants to produce any documentary evidence or witness in departmental inquiry or not? The answer was given that in documentary evidence, a letter dated 3/4/1997 and 5/6/1997 addressed to Chairman G.S.F.C. and Mr. DC Joshi DGM(IR) has been produced by workman, which has been taken on record by Inquiry Officer. This evidence produced by respondent workman DD-1 to DD-5 has been taken on record with signature of respondent workman and Inquiry Officer. Except that no other document is required to be produced by respondent workman and as per letter dated 19/7/1997, he does not want to examine any defence witness. The 3rd question was asked to him by Inquiry Officer that whether he wants to say anything about departmental inquiry, where answer has been given by him that at present he has not to say anything or to make any representation against departmental inquiry and he will make his submission in defence statement. The last question was asked on that day that when he will give his last defence statement, answer was on 14/8/1997 Thursday .
Relying upon aforesaid questionnaire as referred above, learned advocate Mr. Naik submitted that this amounts to admission of legality and validity of departmental inquiry by respondent workman before Inquiry Officer. Therefore, subsequently respondent workman is not entitled to raise question of departmental inquiry, which has been held against respondent workman is illegal and contrary to principle of Natural justice.
Learned advocate Mr. Naik raised contention before this Court that order passed by Labour Court, Baroda is erroneous order because it has been held by Labour Court, Baroda that because of Presenting Officer has not been appointed by petitioner, departmental inquiry is vitiated. The Inquiry Officer has conducted inquiry in absence of Presenting Officer asking a question to witness as well as to workman. Therefore, he acted as Prosecutor and Judge.
The contention is raised by learned advocate Mr. Naik that inquiry has been declared vitiated by Labour Court but no opportunity as prayed in written statement, para 15 has been granted. In support of his submission, he relied upon one decision of Apex Court in case of Workmen in Buckingham and Carnatic Mills, Madras Vs. Buckingham and Carnatic Mills, Madras reported in 1970 Vol I LLJ 26, where he relied upon para 15 which is quoted as under:
15. There is no warrant for the criticism levelled by the appellant that the senior labour officer has acted both as the prosecutor and the judge when he recorded the evidence in this case. No doubt there was no officer separately conducting the prosecution on the side of the management; but what the labour officer had done, as evidenced by Ex. M. 9, was put questions to the witnesses and elicit answers and allow the worker to cross examine those witnesses. Similarly, he has also taken the statements of the worker and asked for clarification from him wherever necessary. Therefore, the enquiry proceedings, as held by the labour Court, have been completely fair and impartial. In fact we find that even after the evidence was closed on 29 October 1965 when the secretary of the staff union desired the senior labour officer to collect materials regarding the extent of damage, as that might go to mitigate the offence, if any, committed by the worker, the Labour officer reported the proceedings on 2 November 1965 after intimation of the workers. The worker was made aware of the particulars of damage collected and his comments regarding those particulars have been recorded by the labour officer and the entire proceedings have been forwarded by him to the mill manager. These circumstances clearly shows that the senior labour officer has conducted the proceedings in an impartial manner.
He also relied upon one decision of Apex Court in case of Delhi Transport Corporation Vs. Shyamlal reported in 2004 (8) SCC 88. He relied upon para 7 which is quoted as under:
7. We find that the Tribunal's conclusions are prima facie not correct. The statement made by the passenger who had paid excess money to the checking officer is not in the nature of hearsay evidence. Additionally, the effect of the admission regarding guilt as contained in the letters dated 13/1/1989 and 24/2/1989 have not been considered in the proper perspective. It is a fairly settled position in law that admission is the best piece of evidence against the person making the admission. It is, however, open to the person making the admission to show why the admission is not to be acted upon.
He also submitted that workman has not shown any prejudice, which has been caused because of non appointment of Presenting Officer and question asking by Inquiry Officer to witness and to workman. He also submitted that Inquiry Officer is not put any question to respondent workman and witnesses. Except that learned advocate Mr. Naik has not raised any contention before this Court and not relying upon any decision before this Court in support of his submission.
Learned advocate Mr. Khambholja for learned advocate Mr. Majmudar appearing for respondent has made submission that Labour Court has rightly examined matter and rightly come to correct conclusion and has not committed any error which would require interference of this Court. In short, he has supported decision given by Labour Court Baroda.
I have considered submission made by learned advocate Mr. Naik and I have perused order passed by Labour Court exh 52 dated 15/7/2009, where inquiry has been held by petitioner is declared contrary to principle of Natural Justice. The facts remained before Labour Court that respondent workman was dismissed from service by petitioner because of misconduct alleged against him even to be proved by Inquiry Officer in departmental inquiry. Vide exh 8, reply was filed by petitioner Company against statement of claim filed by respondent workman. Vide exh 14, evidence of respondent workman, who is handicapped person has been taken by Appointing Court Commissioner in ground floor of Labour Court and accordingly one Court Commissioner P. G. Mavalkar was appointed who has recorded evidence of workman and produced before Labour Court vide exh 19. Vide exh 10 papers of departmental inquiry was produced by petitioner before Labour Court. Vide exh 22 written submission is made by respondent workman and exh 23 written submission is made by petitioner. Thereafter, Labour Court has framed issued whether departmental inquiry which was initiated in accordance with principle of Natural justice or not?
The original documents of departmental inquiry produced before Labour Court vide exh 25 to 51. Exh. 25 is a charge sheet. Thereafter, exh 29 statement was recorded by Inquiry officer of respondent workman. Vide exh 31, one R. K. Shah was examined as witness of petitioner Company who has been called by Inquiry Officer. Vide exh 33 one P. M. Dave, exh 35 Y. S. Shah, exh 37 R. C. Trivedi and exh 40 Ms. Minaxi Adeshra and A. N. Chauhan were examined as witnesses before Inquiry Officer. This all witnesses were called by Inquiry Officer and before Inquiry Officer statement has been recorded in response to question raised by Inquiry officer to witnesses. It was not a voluntarily statement made by each witness before Inquiry Officer but reply has been given by each witness against question raised by Inquiry Officer. So, witnesses have been examined by Inquiry Officer. Thereafter, right of cross examination to such witness has been given to respondent workman. The reply given by each witness has been recorded by Inquiry officer and such reply was in response to question put by Inquiry Officer to such witness. In exh 25, Charge sheet, it is necessary to note that except witness Ms. Adeshara name of any other witness has not been mentioned by petitioner. So it was not clear that how many witnesses and who has been examined by petitioner before Inquiry Officer against present respondent workman. The list of witness has not been provided by Inquiry Officer or petitioner company to respondent workman. Undisputedly, Presenting Officer was not appointed by Inquiry Officer or petitioner company. The charge sheet was issued by executive Director of petitioner company but Executive Director was not examined in departmental inquiry. On R D Bhatt has appointed as Inquiry Officer whose name has been mentioned in charge sheet. In absence of Presenting Officer whole inquiry apparently conducted by Inquiry Officer who has to be considered an independent person to decide on the basis of evidence whether charges which are levelled against workman is proved or not proved? Such independent person who has considered to be an Inquiry Officer has called witnesses whose names are not mentioned in charge sheet and no such list of witnesses given to workman in advance. Except Ms. Adeshara no other name is mentioned in charge sheet as witness to be examined in departmental inquiry. At page 76, question have been asked by Inquiry Officer to respondent workman. The respondent workman was examined by Inquiry Officer exh 42 and question was asked to him and also in cross examination certain question was asked by Inquiry Officer. Therefore, apparently prima facie independent inquiry was not conducted by petitioner company. The entire correspondence, arrangement and management has been made by Inquiry Officer which prima facie found by Labour Court that it amounts to violating principle of natural justice. The certain decision has been relied by petitioner which has been referred in order, in case of A. K. Cripak and Ors Vs Union of India and Ors reported in AIR 1970 150, in case of Board of Trustees of Port of Bombay and Ors Vs. Vijay Ratanarao Surve and Ors reported in 2000 (2) LLJ 613 and Central Bank of India Ltd Vs. V. Karunamoy Benarji reported in 1967 (II) LLJ 739.
I have considered observation and reasoning given by Labour Court, Baroda. I have perused papers of departmental inquiry which has been produced by petitioner along with present petition. The Inquiry Officer has asked question to witness that in respect to charge sheet what is your explanation. The contention raised by learned advocate Mr. Naik that what prejudice has been caused to workman that facts has not been considered by Labour Court. Before Labour Court no such contention was raised by petitioner that what prejudice has been caused to workman if inquiry has been conducted in such manner. Before High Court if any logical contention all of sudden struck to advocate is not permissible to be raised unless it has been raised before Labour Court by petitioner advocate. Therefore, contention raised by learned advocate Mr. Naik about prejudice not caused to workman can not be accepted.
The reported decision of Apex Court in case of Workmen in Buckingham and Carnatic Mills, Madras Vs. Buckingham and Carnatic Mills, Madras reported in 1970 Vol I LLJ 26 para 15, which has been relied by learned advocate Mr. Naik is not applicable to facts of present case. In that case Presenting Officer was not appointed but Inquiry Officer has put question to witness of illusive answer and then allow to workers to cross examine to this witness. But in facts of this case aforesaid decision is not applicable because looking to record produced by petitioner before this Court and before Labour Court entire inquiry has been conducted in manner by one person complete it without even informing in advance to workman that how many witnesses are required to be examined by petitioner and without furnish list of witness along with charge sheet to concern workman. The Inquiry Officer is considered to be independent person can not Act as Prosecutor and Judge. In case of Delhi Transport Corporation Vs. Shyamlal reported in 2004 (8) SCC 88 as referred above learned advocate Mr. Naik relied upon para 7 that statement made by passenger who has paid excess money to Checking Officer is not in nature of hearsay evidence and such statement made before Checking staff by passenger can be considered in evidence. For that legal proposition there is no different opinion is required. He also relied upon very same decision of Apex Court in case of DTC that admission of guilty by delinquent whose evidentiary value and admission against maker though it is open to maker to show why it should not be act upon. In this case there is no admission made by respondent workman in respect to charges levelled against him and he has not also admitted before Labour Court that inquiry is held by petitioner legal and valid. Merely answering inquiry Officer that during pedency of inquiry he is not having any difficulty and unconformable that does not mean it amounts to admission of workman that inquiry is legal and valid. The respondent workman is entitled to raise contention before labour Court that inquiry which has been conducted against him is not legal and valid for that no estoppal applied. Therefore, that contention raised by learned advocate Mr. Naik can not be accepted.
This Court had occasion to consider question whether inquiry officer or competent officer is acted being Prosecutor and Judge himself on such bias person is disqualified from conducting inquiry proceeding.
In case of Amumiyan Pirmiyan Kadri Vs. Gujarat Road Transport Corporation & Ors reported in 1994 (1) GLR 326. This aspect has been examined by this Court in considering almost similar facts where Competent Officer in S. T. Corporation who has conducted inquiry and in such inquiry Presenting Officer was not appointed. This Court in detailed decision as considered role of Inquiry Officer in departmental inquiry where relevant observation made by this Court in para 13 to 23 are quoted as under:
13. According to Shri Mehta for delinquent, the Enquiry Officer has transgressed his limits prescribed under para 5 of the Appeal Procedure. According to Shri Mehta, no power is given to the Enquiry Officer under para 5 of the Appeal Procedure to cross examine any witness or to compel the delinquent to give any statement. If any such power is assumed by the Enquiry Officer, runs the submission of Shri Mehta for the delinquent, it would amount to assumption of the role of the prosecutor by the Enquiry Officer who has to perform the role of the judge. According to Shri Mehta, it is a settled principle of law that no person can be both a judge and a prosecutor. Shri Mehta has urged that, if the Enquiry Officer performs the functions both of the judge and the prosecutor, he can be said to have been biased and to that extent principles of natural justice can be said to have been contravened. Shri Desai for the respondents has no other hand submitted that there is no violation of any provision of the Appeal Procedure on the part of the Enquiry Officer. What the Enquiry Officer has done in the enquiry proceedings, according to Shri Desai for the respondents, was to put questions to certain witness in view of the fact that no presenting officer was appointed for presenting the case of the department in the inquiry proceedings. So far as the recording of the statement of the delinquent is concerned, Shri Desai for the respondents has submitted that it was in the nature of oral evidence given by the delinquent in the enquiry proceedings.
In the alternative, runs the submission of Shri Desai for the respondents, the statement of the delinquent recorded by the Enquiry Officer can be said to be for the purpose of seeking the delinquent's explanation with respect to the circumstances against him on the record of the case. In that view of the matter, Shri Desai has urged that the Enquiry Officer can not be said to have been guilty of any infraction of the Appeal Procedure and could not be said to have transgressed his limits resulting into contravention of principles of natural justice. Shri Desai has submitted that by putting certain questions to the witness for the purpose of finding out the truth or to the delinquent with that end in view, it cannot be said that the Enquiry Officer has converted himself into the prosecutor from the judge.
14. It transpires from the record of the enquiry proceedings that the delinquent did not volunteer to give any oral testimony in the enquiry proceedings. It may be mentioned at this stage that he had no one as his defene assistant in the enquiry proceedings. If at all the delinquent wanted to give any oral testimony, his chief examination could have been recorded by himself. The so called statement of the delinquent at Exh. 22 shows that no chief examination of his is taken. What is mentioned therein is that the delinquent was questioned by the Enquiry Officer. It would mean that the delinquent was required to give answers to the questions put to him by the Enquiry Officer. This makes one thing clear that the so called statement at Exh. 22 can by no stretch of imagination be said to be his oral testimony in the enquiry proceedings.
15. The question then arises whether or not the Enquiry Officer could have recorded his explanatory statement in the manner it is recorded by the Criminal Court under Sec. 313 of the Criminal Procedure Code, 1973 on completion of the recordings of the prosecution evidence. As aforesaid, the only provision made in that regard is in Clause (k) of Para 5 of the Appeal Procedure. Thereunder, the Enquiry Officer is invested with the limited power of giving a further opportunity to the delinquent if making a written or oral statement if desired by him. It would mean that, after completion of recording the evidence, the Enquiry Officer has to ascertain from the delinquent whether or not he has to say anything more with the respect to the material on record. If the delinquent so desires, the option is given to him to make an oral or written statement in that regard. It thus becomes clear that such statement to be given by the delinquent after completion of the recording of the evidence should be out of his volition. It is not open to the Enquiry Officer does so, even if be in the nature of seeking explanation of the delinquent with respect to the material on record pointing the finger of guilt against the delinquent, the Enquiry Officer can be said to be transgressing his limits laid down in Clause (k) of Para 5 of the Appeal Procedure.
16. In the instant case, what transpires from the purported statement at Exh 22 recorded by the Enquiry Officer in the enquiry proceeding is that the Enquiry Officer has cross examined the delinquent with respect to certain material on record. This it was certainly not open to him. Shri Desaid for the respondent has failed to point out any provision in the Appeal Procedure enabling the Enquiry Officer to under take such task. It the Enquiry Officer cross examines the delinquent under the guise of recording his statement (which it would not be open to him to do under the Appeal Procedure), he dons the robe of the prosecutor while keeping the robe of the Judge on his shoulder. It is a settled principles of law that no person can be both a prosecutor and a Judge. If a person tries to be both, he can be said to be biased in conducting the enquiry proceedings. It is a well known principle of law that a biased person is disqualified from conducting such enquiry proceedings. That is a settled principle of natural justice.
17.Shri Desai for the Corporation has, however, submitted that, even if it is found that the Enquiry Officer has contravened the principles of natural justice by cross examining the delinquent in the enquiry proceedings, no prejudice is shown to have been caused to the delinquent thereby, and as such the order of dismissal from service at Exh. 26 can not be held to be illegal and invalid on that score, Shri Desai for the corporation has taken me through the statement of the delinquent at Exh 22 as recorded by the Enquiry Officer in the enquiry proceedings. According to Shri Desai, the delinquent has admitted that the statement as recorded by the Enquiry Officer was given out of his own volition and was not under any coercion. In that view of the matter, runs and submission of Shri Desai for the Corporation, the delinquent did not object to the recordings of his statement by the Enquiry Officer in the enquiry proceedings and he cannot now be permitted to urge that the enquiry proceedings stood vitiated on the ground that the statement recorded from him was in the nature of his cross examination by the Enquiry Officer.
18.In this connection a reference deserves to be made to the binding ruling of the Supreme Court in the case of S. L. Kapoor Vs. Jagmohan & Ors reported in AIR 1981 SC 136. It has been held therein:
The principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It is comes from a person who has denied justice that the person who has been denied justice is not prejudice.
In view of the aforesaid dictum of law pronounced by the Supreme Court in its ruling in the case of S. L. Kapoor (supra), Shri Desai for the Corporation can not be permitted to say that no prejudice is caused to the delinquent on account of contravention of principles of natural justice on the part of the disciplinary authority as the Enquiry Officer in conducting the enquiry proceedings. Shri Desai for the Corporation has however tried to distinguish the aforesaid ruling of the Supreme Court in the case of S. L. Kapoor (supra) on the ground that in that case the basic rule of natural justice, namely, the audi alteram partem rule, was found to have been contravened. It was not the case, runs his submission, where the rule of bias was found to have been contravened. I think the above quoted observations of the Supreme Court from its aforesaid ruling in the case of S. L. Kapoor (supra) can not be distinguished on the ground that they were made in the context of the audi alteram partem rule and two aspects. Firstly, no person can be condemned unheard. Secondly, no person can be a judge in his own cause. If either fact of natural justice found not to have been complied with, the consequences would be annulment of the action of the order passed in such contravention.
19. Again, it may be argued that objection based on the rule of bias has to be pressed into service in the initial stage in view of the ruling of the Supreme Court in the case of Manak Lal Vs. Dr. Prem Chand Singhvi & Ors., reported in AIR 1957 SC 425 as relied on by Shri Desai for the Corporation. This ruling of the Supreme Court can be distinguished on its own facts. In that case, one Advocate was facing the Bar Council proceedings. He challenged the conclusion on the ground of bias. The objection on the ground of bias was taken up for the first time before the High Court. In that context, the Supreme Court held that it would not be permitted to be done.
20.The aforesaid ruling of the Supreme Court in Manak Lal's case (supra) is distinguishable on its own facts. There, the person involved was a legal practitioner. It can not be gainsaid that a legal practitioner possesses a legally trained mind. He can be said to be aware of the intricacies of law and also of disciplinary proceedings. He can very well be said to be in know of principles of natural justice and their true import and meaning and scope. If he found that some member of the disciplinary committee holding disciplinary proceeding against him was biased against him, he ought to have raised objection immediately. An advocate or a legal practitioner is always considered to be independent person. He is a professional. He is not subjected to any subordination. He does not thrive on the mercy of anyone. In that case, his objection, if any, in that regard could not have been subjected to participation in the disciplinary proceedings against his will after taking such objection. Even if he could have been subjected to such participation, his such objection could not have been obliterated from the record.
21. As against this, a servant facing the disciplinary proceeding is pitted against his superior officer as the Enquiry Officer or as the Disciplinary authority. Because of his peculiar predicament facing the disciplinary proceedings, he might not be in a proper frame of mind to raise any such objection based on the rule of bias. If he half heartedly or timidly raised such objection, it can just be brushed aside or overruled without keeping anything on record and the poor fellow would be a helpless onlooker. He can not be likened to an Advocate facing the disciplinary proceedings having a legally trained mind. In fact the record of the disciplinary proceedings shows that the delinquent was not assisted even by his co worker or a union representative as provided in the Appeal Procedure. If he remained unassisted in the enquiry proceeding against him, it could not have been expected of him to press into service the rule of bias.
22. I think different considerations might have arisen if he had failed to press this point in his departmental appeal, if any, against the impugned order of his dismissal from service at Exh. 26 on the record of the Trial Court. It is an admitted position on record that he did not challenge authority named in the Appeal Procedure. In that view of the matter, not pressing into service the rule of bias in the enquiry proceedings into the order of his dismissal from service at Exh 26 on the record of the trial Court before the Court of law.
23.In view of my aforesaid discussion, I am of the opinion that the impugned order date Exh 26 on the record of the trial Court is passed on the basis of the enquiry proceedings conducted in contravention of the rule of bias as a basic principles of natural justice. Such order of dismissal from service can not be sustained in law. It has to be declared illegal and invalid, null and void. Then arises the question as to what relief the appellant deserves to be granted. Ordinarily, the matter should be stood vitiated. It transpires from the record that the enquiry proceedings were held against the delinquent some time in 1977. Fourteen long years have rolled by since then. It is no use keeping the Sword of Demoeles hanging on the head of the appellant. Instead, it would be in the fitness of things to order his reinstatement in service without payment of any kind of back wages to him from the date he was relieved pursuant to the order of his dismissal from service at Exh. 26 till his reinstatement litigation on some technical ground. But for the Enquiry Officer transgression of limits, it can be said, on the basis of the record of the enquiry proceedings, that the charge levelled against him was established. The loss of bread and butter for 14 long years would by itself be a penalty to him. That should deter him from slipping into his such act of misconduct in future. I am supported in this view of mine by the ruling of this Court in the case of Bhimsing Sardarsing Vs. District Supdt of Police and Ors reported in (1982 (2) XXIII (2) GLR 410 and the unreported ruling of this Court in Special Civil Application No. 116 of 1988 decided on 22nd August 1991.
The above referred decision has been considered by Division Bench of this Court in SCA no. 3456/1980 in case of Shri Jayrambhai Thakershibhai Italiya Vs. Gujarat State Road Transport Corporation. The relevant observation made in para 7 to 15 are quoted as under:
7. We have carefully considered the rival submissions advanced by the learned Counsel. In order to appreciate the submission of the learned Counsel, it would be necessary to refer to certain provisions of the 'Procedure'.The respondent Corporation has framed Gujarat State Transport Employees' Service Regulations in exercise of powers conferred on it by Section 45 of the Road Transport Corporations Act, 1950. In exercise of its power under Regulation 80 of the Service Regulations, the Corporation has framed the Discipline and Appeal Procedure for the Gujarat State Road Transport Corporation Employees. Para 5 thereof prescribed the procedure for dealing with acts of misconduct of employees of the Corporation. Clause (b) of Para 5 requires that a person against whom action is proposed to be taken for any act of misconduct, should be provided with a copy of the charge or charges as well as a statement of allegations that have been made against him and over which enquiry is proposed to be held. Clause ? thereof provides that the person charged shall be required, within 7 days of the receipt of the charge sheet by him, to put in a written statement of the defence and to state whether he desires to be heard in person. Thereafter the charged employee is required to be given an opportunity of making an oral statement in addition to the written statement, if any, submitted by him and this is provided by Clause (d) of para 5 of the Procedure. Then comes Clause (e) thereof. Thereunder, the charge sheeted employee is given an opportunity to inspect the documents relevant for the purpose of the disciplinary proceedings. Clause (f) thereof makes a provision for production of documents on the part of the charge sheeted employee. Clause (g) thereof requires the Enquiry officer to record oral evidence in the presence of the defaulter. Clause
(h) provides for the procedure and manner for recording such evidence. Clause (I) thereof lays down that Pleaders should not be allowed to appear at the enquiry proceeding. A provision is made thereunder to provide for defence assistance. Clause (j) of para 5 of the Procedure is not material for the present purpose. Then comes Clause (k) thereof. It reads as under:
After completing the enquiry and giving the persons charged a further opportunity of making a written or oral statement, if desired by the person charged, the Enquiry Officer, shall record his findings on such charges and the reasons for such findings.
The rest of the Clauses of para 5 are not material for the present purpose and, therefore, they have not been referred to in detail.
8. According to Mr. Rathod, the Enquiry Officer has transgressed his limits prescribed in para 5 of the Procedure by compelling the petitioner to give deposition before him and by cross examining him and if such power is assumed by the Enquiry Officer, it would amount to assumption of role of Prosecutor by the Enquiry Officer, who has to perform the role o Judge also. According to Shri Rathod, it is a settled principle of law that no person can be both a Judge and a prosecutor and if the Enquiry Officer performs the functions both of the Judge and the prosecutor, he can be said to have been biased and to that extent principles of natural justice can be said to have been violated. Shri Desai, for the respondent on the other hand has submitted that there is no violation of any provision of the Procedure on the part of the Enquiry Officer and what the Enquiry officer has done in the enquiry proceedings, was to put questions to the petitioner in view of the fact that no Presenting Officer was appointed for presenting the case of the Department in the enquiry proceedings. So far as the recording of the statement on behalf of the respondent that it was in the nature of the oral evidence given by the delinquent in the enquiry proceedings and the statement of the petitioner recorded by the enquiry officer can be said to be for the purpose of seeking the petitioner's explanation with respect to the circumstances appearing against him on the record of the case and in that view of the matter, the Enquiry Officer can not be said to have been guilty of any infraction of the Procedure and could not be said to have transgressed his limits resulting into violation of the principles of natural justice.
9. It transpires from the record of the enquiry proceedings, which has been produced by the petitioner alongwith the petition at Annexure C collectively that the petitioner did not offer himself to be examined as a witness at the enquiry proceedings. It appears that the Competent Authority asked certain questions to the petitioner and then cross examined by the competent Authority at length as to the incident in question. The competent authority has also asked questions to the Reporter, who had made report after checking the Bus on 16th November 1977 and thereafter the petitioner was permitted to cross examine the said Reporter. On appreciation of the evidence, the Enquiry Officer had thereafter come to conclusion that the charges levelled against the petitioner were proved. As stated earlier it is an admitted position that in the present case the competent authority himself had conducted the enquiry proceedings against the petitioner.
10. In the above facts, the question then arises whether or not the Enquiry Officer could have compelled the petitioner to give his deposition and could have cross examined him. It transpires from record of the enquiry proceedings that the petitioner did not volunteer to give any oral testimony in the enquiry proceedings. It may be mentioned at this stage that the petitioner had one union representative as his defence assistant in the enquiry proceedings. If at all, the delinquent wanted to give any oral testimony, his chief examination could have been recorded by his defence assistant. The so called statement of the petitioner at Annexure C shows that no chief examination of his was taken by his defence assistant. What is mentioned therein is that the petitioner was questioned by the Enquiry Officer in presence of the former's defence assistant. It means that the petitioner was required to give answers to the questions put to him by the Enquiry Officer and therefore, by no stretch of imagination, the statement at Annexure C can be said to be voluntery testimony of the petitioner in the enquiry proceedings.
11. Apart from the fact that the statement in this manner could not have been recorded by the Enquiry Officer was not appointed to present the case of the Corporation in the enquiry proceedings and for that purpose, some another officer could have been appointed by the Corporation. The manner in which the questions have been put to the petitioner in cross examination, clearly shows that the enquiry officer has acted as Presenting Officer of the Corporation. Therefore, it is not possible to agree with the submission advanced on behalf of the respondent to the effect that questions were put to the petitioner in order to elicit certain information. In view of our above conclusion, we hold that the competent Authority acted both as a Prosecutor and as a Judge while conducting the enquiry against the petitioner. The Enquiry Officer has clearly transgressed his limits prescribed in para 5 of the Procedure. It is a settled legal principle that no person can be both a Judge and a prosecutor.
If the Enquiry officer performs the functions both of the Judge and that of prosecutor, he can be said to have been biased and to that extent, principles of natural justice can be said to have been violated.
12. In Second Appeal No. 459 of 1979, decided on 18th December 1991 by my learned brother Shri. A. N. Divecha, J., this very point was involved. The appellant of that case, who was serving as a Conductor in the Corporation, was dismissed from service after holding enquiry on the ground that the appellant of said case had not issued tickets to 13 passengers travelling in the Bus. The appellant had filed a Suit in the Court of learned Civil Judge (J.D.) at Junagadh challenging the said dismissal order. The suit was dismissed by the learned Trial Judge and the Appeal preferred by the appellant before the District Court also failed. Thereupon Second Appeal was preferred before this Court. It was urged on behalf of the appellant that the Enquiry Officer had acted both as a prosecutor and as a Judge, which was not permissible under the provisions of the Procedure. After examining the Scheme of the Discipline and Appeal Procedure for the Gujarat State Road Transport Corporation Employees in great detail, it has been held that the Enquiry Officer is not entitled to compel the delinquent to give any statement, nor he is entitled to assumption of the role of the prosecutor as well as that of the Judge. After stating the settled principle of law that no person can be both a Judge and Prosecutor, the appeal was allowed and the Suit was partly decreed by directing reinstatement of the Appellant in service without back wages. Similar such view has been taken by my learned brother Shri A. N. Divecha, J. in Second Appeal no. 432 of 1979, decided on 13th December 1991. therein also respondent no. 1 who was serving as a Conductor in the Corporation, was dismissed from service after holding enquiry on the charge that no tickets were given to certain passengers though fares were recovered from them. Respondent no. 1 therein challenged the order of dismissal by filing a Suit in the Court of learned Civil Judge (S.D.) at Junagadh, who dismissed the same. Being aggrieved, the respondent preferred an Appeal before the District Court of Junagadh. The Appeal was allowed and, therefore, the Gujarat State Road Transport Corporation preferred the above numbered Second Appeal before this Court. In the said case, it was noticed that the delinquent of that case did not volunteer to give any statement in the enquiry proceedings and his examination in chief was not recorded by his defence assistant. It was also noticed that the delinquent was questioned by the Enquiry Officer in presence of the former's defence assistant. After considering the Scheme of the Procedure, it has been held that the only provision made in that regard is in Clause (k) of Para 5 of the Procedure and thereunder the Enquiry Officer is invested with limited powers of giving a further opportunity to the delinquent of making a written or oral statement if desired by him, but the Enquiry Officer has no authority to compel the delinquent to give any statement or to cross examine him. In the said Second appeal, it has been further held as under:
If the Enquiry Officer cross examines the delinquent under the guise of recording his statement (which it would not be open to him to do under the Appeal Procedure), he dons the robe of the prosecutor while keeping the robe of the judge on his shoulder. It is a settled principle of law that no person can be both a prosecutor and a judge. If a person tries to be both, he can be said to be biased in conducting the enquiry proceedings. It is a well known principle of law that a biased person is disqualified from conducting such enquiry proceedings. That is a settled principle of natural justice.
13. We are in complete agreement with the view expressed by the learned Single Judge in the above referred Second Appeals. In view of out above referred discussion, we are of the opinion that the Enquiry Officer performed the functions of the prosecutor as well as that of the Judge and desired to carry with enquiry proceedings to its logical end. His such an approach was in contravention of the basic principle of natural justice to the effect that no person can be both a Judge and a prosecutor and this approach on the part of the Enquiry Officer has vitiated the enquiry proceedings. Any decision or order based on any illegal and invalid proceedings has to be branded as null and void and of no consequences or effect whatsoever.
14. Mr. Desai, learned Counsel for the respondent submitted that the statement of the petitioner got recorded by the Enquiry Officer should be treated as his explanatory statement in the manner it is recorded by the Criminal Court under the provisions of Sec. 313 by the Criminal Procedure Code, 1973 on completion of the recording of the prosecution evidence and if it is so treated, then it can not be said that the enquiry proceedings are vitiated. So far as this submission is concerned, it has to be noted that the only provision made in that regard is to be found in Clause (k) of Para 5 of the 'Procedure and thereunder the Enquiry Officer is invested with limited powers of giving a further opportunity to the delinquent to make an oral or written statement if desired by him, on completion of the enquiry. The answers given by the petitioner to the questions put by the competent authority in the nature of examination in chief and cross examination can not be construed as availing of the opportunity of making an oral and written statement by petitioner under Clause (k) of para 5 of the Procedure. From the language of Clause (k) of para 5 of the Procedure, it becomes clear that such statement to be given by the delinquent after completion of the recording of the evidence should be out of his own volition and not under compulsion. It is not open to the enquiry officer to compel a delinquent to give any such statement and if the inquiry officer does so even if ti be in the nature of seeking explanation of the delinquent, the Enquiry Officer can be said to be transgressing his limits laid down in Clause (k) of para 5 of the Procedure. Therefore, we do not find any substance in this submission made by learned advocate Mr. Desai on behalf of the respondent.
15.In view of our aforesaid discussion, we are of the opinion that the impugned order of dismissal is passed on the basis of the enquiry proceedings conducted in contravention of the Rule of bias as a basic principle of natural justice and such order of dismissal from service can not be sustained in law and therefore, it is declared to be illegal, invalid, null and void.
In view of decision given by this Court as referred above and looking to facts of present case, witness who was examined before Inquiry Officer whose list was not given in advance to workman except one witness name. Rest of persons have been examined without supplying name of such witness of workman. Each witness has been examined by Inquiry Officer and each witness have been given answer to question put by Inquiry Officer has been recorded by Inquiry Officer and workman was also examined by Inquiry Officer in questionnaire, which shows bias of Inquiry Officer against respondent workman. It is not role of Inquiry Officer to ask any question to any witness including workman. He has to record merely proceeding which has been carried out in departmental inquiry, instead of that looking to record as it is in facts of present case, Inquiry Officer has participated in inquiry as person of petitioner company. The Inquiry Officer is not remained independent but he has participated in inquiry as person involved in inquiry which was not his function at all while conducting departmental inquiry. Therefore, apparently it has been found from record which produced by petitioner that Inquiry Officer has acted being prosecutor and Judge and it shows bias and in absence of Presenting Officer, participation of Inquiry Officer itself suggests that inquiry was not conducted in independent manner and due to that principle of natural justice has been violated and it cause great prejudice to workman who has to appear before Higher officer of petitioner Company as Inquiry Officer. Therefore, order passed by Labour Court, wherein it is held that inquiry conducted by Inquiry Officer who has been appointed by Petitioner company is vitiated because Principle of Natural justice has been violated. For that, Labour Court, Baroda has not committed any error which would require interference by this Court while exercising power under Art. 227 of Constitution of India. The decision which has been recorded by learned advocate Mr. Naik is not helpful to him because it is not applicable to facts of present case.
It is necessary to note that such order which has been passed by Labour Court on preliminary point which can be challenged by petitioner at the end of proceeding or after final award passed by Labour Court. Such in between challenged is not permissible because respondent workman who was dismissed from service on 26/11/1997 and dispute has been referred for adjudication which has been registered being reference no. 1007/98. So, more than 13 years have passed and during that period after 12 years matter has been reached to stage of deciding preliminary point in respect to departmental inquiry which has been held by Labour Court contrary to principle of natural justice.
This Court before making submission by learned advocate Mr. Naik made clear to him that this Court can kept open right of petitioner to challenge this interim order in case if ultimate award or final award goes against or adverse to present petitioner, this Court is prepared to give permission to petitioner to challenge this order if ultimate result of reference is decided against present petitioner. This Court is also brought to his notice that against very petitioner company, very same question has been argued by learned senior Advocate General Mr. Kamal B Trivedi in SCA no. 9544/2009 which has been decided by this Court on 13/4/2010. The said petition filed by G. S. F. C. Ltd has been dismissed by this Court, where same identical question was examined by this Court and decided by this Court in respect to same petitioner company. The said petition is having almost similar nature of allegation made against respondent by petitioner company. But learned advocate Mr. Naik submitted that No petitioner company invited reasoned order from this Court. Therefore, considering conduct of petitioner and his advocate, inspite of having earlier order in case of same petitioner company was party to that, this Court has decided it against company. Even though to insist reasoned order from this Court in identical case, suggests something which Court is not able to understand it.
Respondent was appointed on fixed term for a period of two years with effect from 16/19th August, 1993. Respondent was offered appointment on probation on the post of account clerk (JR) in Gr. IV-A on 20/22nd November, 1995. On 17th April, 1997, a complaint was lodged by the officer of petitioner company against respondent workman for his continued misconduct of harassment and misbehaving with his female colleague, threatening his superior officer. This complaint was filed by Mr. RK Shah, Senior Manager (Finance). On 19th April, 1997, General Manager (Finance) has agreed with the views expressed in said note. It is necessary to note that on the basis of aforesaid note, no preliminary inquiry was initiated and no statement of any person has been obtained of those who are witnesses of such incident. Petitioner company has straightway issued charge sheet to respondent on 30th June, 1997 which was replied by respondent workman on 4th July, 1997 denying allegations made in charge sheet and pointing out that he is completely handicapped person and on that quota, he was appointed by petitioner company. In reply, there is total denial of incident itself by respondent workman. Thereafter, on 8th July, 1997, after a period of four days from receiving reply from respondent workman, departmental inquiry was fixed by petitioner company. On 8th July, 1997, inquiry officer Shri Gautam Amin has recorded statement of respondent workman in form of question-answer and thereafter, inquiry was adjourned to 12th July, 1997. It was informed to respondent workman that on next date of hearing, one Mr. RK Shah, PM Dave will be examined in departmental inquiry. Accordingly, inquiry officer has informed RK Shah by letter dated 8th July, 1997 to remain present in departmental inquiry on 12th July, 1997. On 12th July, 1997, no Presenting Officer has been appointed by inquiry officer and inquiry officer has acted as a man of the company, not remained independent and workman has not appointed any person as defence representative. Question was asked by Inquiry Officer to Mr. RK Shah, Senior Manager (Finance) who has made complaint that in respect of note dated 17th July, 1997, if he wants to make any further statement, then, he can give details. Accordingly, statement of Shri RK Shah was recorded, who was considered to be witness. After completion of statement in respect to question put by Inquiry Officer to Mr. RK Shah, workman was given opportunity to cross examine witness Mr. RK Shah. Thereafter, workman has cross examined and inquiry was completed on that day and it was adjourned to 15th July, 1997 for examination of Shri PM Dave.
Accordingly, on 14th July, 1997, letter was written by inquiry officer to Mr. PM Dave, Suresh Desai to remain present in inquiry on 15th July, 1997. Question was asked by inquiry officer to Shri PM Dave what he wants to say about charge sheet. Accordingly, statement was given by him and thereafter, he was cross examined by respondent workman. One Suresh H. Desai was examined and question was asked to him by inquiry officer what he has to say about charge sheet against workman. After completion of his statement, he was cross examined by workman. Thereafter, question was asked by inquiry officer to Suresh Desai after cross examination of Suresh Desai done by workman and it was emphasized by Suresh Desai that complaint filed by Ms. Meenaxi is correct. Then, inquiry was adjourned to 16.7.1997 and Inquiry Officer has called Mr. YS Shah by letter dated 15th July, 1997 and one Mr. KD Thakkar. Mr. YS Shah and Mr. KD Thakkar, both remained present and were examined by inquiry officer in departmental inquiry and thereafter, it was cross examined by respondent workman. Thereafter, inquiry officer has asked question to both witnesses about complaint made by Ms. Meenaxi. Thereafter, Mr. KD Thakkar, Senior Manager (Finance) was examined by inquiry officer and in respect to question put by inquiry officer, Mr. KD Thakkar has given reply and thereafter, he was cross examined by respondent workman. Then, inquiry officer adjourned inquiry to 17th July, 1997 calling witness RC Trivedi by letter dated 16th July, 1997 and one Mr. GL Maskar was also called for evidence and on 17th July, 1997, one Mr. RC Trivedi supervisor was examined and question was asked by inquiry officer and he gave his reply and thereafter, he was cross examined by respondent workman and on the same day, GL Maskar was also examined by Inquiry Officer and initially, question was put to him by inquiry officer that what he has to say about charge sheet and then, Mr.Maskar has given his statement which was cross examined by respondent workman. Cross examination was offered and it was informed to respondent workman by inquiry officer whether he wants to examine any defence witness or produce any documentary evidence, then, time was given for two days and thereafter, no one was examined by respondent workman and ultimately on 29.7.1997, Ms. Meenaxi Adeshara was called by inquiry officer for her evidence on 31st July, 1997 and one Mr. Ashok Chauhan was also called by inquiry officer. Inquiry officer has asked question to Ms. Meenaxi what she has to say about charge sheet against respondent workman and she made statement in response to question put by inquiry officer and delinquent respondent has cross examined it which was completed and again one Mr. Ashok Chauhan was examined by inquiry officer which was cross examined by respondent workman. Thereafter, inquiry was fixed to 12th August, 1997 and inquiry officer has called respondent by letter dated 11.8.1997. On 12th August, 1997, certain question were asked to respondent by inquiry officer page 76 and 77, which are relevant, has been asked by inquiry officer to respondent in respect to defence document DD 1 to DD 5 and certain questions put to respondent workman by inquiry officer on 12th August, 1997 which continued upto page 82. Inquiry Officer has cross examined respondent workman from page 76 to 82 in respect to allegations made against respondent workman in charge sheet. This nature of cross examination of respondent workman done by inquiry officer has been considered as defence statement of respondent workman but in fact, it was not a defence statement but a separate independent question were put to him by inquiry officer and answer has been given on merits relating to allegations made in the charge sheet.
Such type of cross examination by inquiry officer running in 7 pages from page 77 to page 82 itself is enough to hold that the inquiry officer has participated in departmental inquiry conducted by him and in absence of Presenting Officer, he has been acting and participating as prosecutor and Judge both. Such theory which has been adopted by inquiry officer is apparently contrary to the principles of natural justice. In defence statement, such question are not necessary to be asked by the inquiry officer to delinquent- respondent-workman. Defence statement of workman has to be voluntary and not in the form of question/answer, otherwise, it amounts to inquiry officer acting as Prosecutor and Judge, both. This principle has been examined by Division bench of this Court in case of Jayram Thakarshi versus Gujarat State Road Transport Corporation in Special Civil Application NO. 3456 of 1980 decided on 19th February, 1992 by Division Bench of this Court (Coram : Hon'ble Mr. Justice JM Panchal and Hon'ble Mr. Justice AN Divecha,JJ). Relevant discussion made by Division Bench of this Court are as referred above.
Therefore, in view of the observations made by Division Bench of this Court in identical facts where delinquent has been cross examined by inquiry officer in absence of presenting officer at the time of taking his defence statement and same has been held to be bias of inquiry officer and it has also been held that the same is against the principles of natural justice. According to my opinion, in facts of present case, this aspect has been rightly examined by labour court in deciding preliminary point raised by workman that departmental inquiry is vitiated because it has been recorded and conducted in a manner by inquiry officer as if he has been participating in inquiry and his independent status has been involved in departmental inquiry as a representative or as a presenting officer of petitioner company. So, entire conduct of inquiry officer in not remaining independent but acting as a presenting officer of petitioner company has converted inquiry officer into a person acting as prosecutor and judge Both. Such conduct itself is proving bias of inquiry officer which has caused grave prejudice to workman while giving defence statement and in cross examination, certain facts have been put in such a manner so that easily charge can be established on the basis of defence statement itself, therefore, according to my opinion, view which has been taken by labour court that inquiry which has been held by petitioner company is contrary to the principles of natural justice is quite legal and valid and no error is committed by labour court, Baroda in deciding preliminary point requiring interference of this court in exercise of powers under Article 227 of Constitution of India.
It is necessary to note one letter which has been addressed by respondent to Chairman on 3rd April, 1997 in respect to his confirmation which has been found to be due on 24th February, 1996. It is also necessary to note that defence statement separately produced by respondent workman in respect to charge sheet dated 30th June, 1997, from page 1 to 30 on 14th August, 1997, even though, on 12th August, 1997, when workman was called for inquiry for determination of tentative date for submission of defence statement, at that time, in respect to document DD 1 to DD 5 produced by workman, detailed cross examination has been made by inquiry officer. Subsequently on 14th August, 1997, defence statement has been produced by workman which is running into page 1 to 30. This question-answer from page 76 to 82 squarely proves role of inquiry officer acting as prosecutor and judge both. At page 86, workman has produced defence statement on 14th August, 1997 to inquiry officer. In charge sheet in which allegations are made, almost relating to his total physically handicap condition has been high lighted. It is also necessary to note that no preliminary inquiry was made or carried out before issuing charge sheet to workman only because of complaint made by one Mr. RK Shah, Senior Manager and it is necessary to note that General Manager (Finance) has agreed with the views expressed in the note of Mr. RK Shah where allegations were made against respondent workman. General Manager (Finance) has accepted report submitted by Inquiry Officer who was from the beginning agreeing with note prepared and submitted by Mr. RK Shah. Thereafter, show cause notice was issued to workman about proposed punishment of dismissal which was replied by workman on 10th November, 1997 and ultimately on 14th November, 1997, reply to show cause notice was submitted by workman and important fact is that the appointing authority or the punishing authority General Manager (Finance) has passed order of dismissal against respondent workman on 26.11.1997 while accepting finding/report submitted by inquiry officer and not accepted explanation tendered by workman in reply to show cause notice and decided to dismiss workman who was also same authority General Manager (Finance) who was from beginning, right from date of submission of note by Shri RK Shah which is at page 31 annexure E dated 17th April, 1997 where following endorsement has been made in note submitted by Mr. RK Shah Senior Manager (Finance) on 19th April, 1997:
General Manager (Finance) : I Agree with the views expressed in this note. Ms. Meenaxi and her mother also had been to my residence complaining the harassment caused to Meenaxi and her mother due to the behaviour of Mr. Amin over phone and in the department.
This endorsement has been made by General Manager (Finance) on 21.4.1997, meaning thereby, it was his pre-determination to dismiss respondent workman and appointing authority as well as punishing authority has agreed with allegation made by Mr. RK Shah in note dated 17.4.1997 annexure E page 31 and 32 and same authority General Manager (Finance) has accepted finding report of inquiry officer and also not accepted explanation given by respondent workman and he is also a person who has taken decision to dismiss workman from service. Therefore, General Manager (Finance) was witness to incident as well as allegations made against workman and from the very beginning, he was agreeing with the note dated 17.4.1997 which has subsequently become base for issuing charge sheet to respondent workman. Whole charge sheet has been issued against workman on the basis of note dated 17th April, 1997 submitted by Mr. RK Shah and endorsed and accepted by General Manager (Finance) on 19.4.97. This is a separate independent reason which has apparently established that the appointing authority as well as inquiry officer both were bias against workman and in respect to allegations made against workman, appointing authority was, from the beginning, agreeing even prior to issuance of charge sheet against the workman and, therefore, it was a pre plan based on pre determination by petitioner company to dismiss respondent workman from service but drama or farce of inquiry has been shown to be conducted but in substance, it was not the real inquiry but merely empty formality of inquiry. Departmental inquiry have some substance and have meaning, it is not to be held in a formal manner and it is not an empty formality and it should not have to be done only for the sake of doing it. It is also necessary to note that the persons those who were examined in departmental inquiry, their statements were not recorded prior to examining such witnesses in departmental inquiry. No such statements were supplied to workman. No details of their evidence has been supplied to workman. Along with charge sheet, how many persons are going to be examined by departmental authority, that list was not supplied to workman. In charge sheet, how many persons will be examined against workman, that has not been disclosed by petitioner department. So, those who have been examined by department in departmental inquiry against workman, conduct of which inter connected and related persons of one department and guided and controlled by a highest authority of department namely General Manager (Finance) and, therefore, scope of inquiry itself suggests that it has not been held in accordance with the principles of natural justice but it was already concluded by petitioner company to dismiss workman and whatever inquiry has been conducted, it was a mere empty formality and, therefore, Presenting Officer was not appointed by petitioner and inquiry officer himself has acted as a presented officer, as well as prosecutor and Judge both and he has apparently not remained independent as required under the provisions of the principles of natural justice.
In Meenglas Tea Estate v. The Workmen, AIR 1963 SC 1719, apex court has considered misconduct by worker, enquiry by management, principles of natural justice and observed as under in para 4,5 and 6 as under:
4. The Tribunal held that the enquiry was vitiated because it was not held in accordance with the principles of natural justice. It is contended that this conclusion was erroneous. But we have no doubt about its correctness. The enquiry consisted of putting questions to each workman in turn.No witness was examined in support of the charge before the workman was, questioned. It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirements must be substantially fulfilled before the result of the enquiry can be accepted. A departure from this requirement in effect throws the burden upon the person charged to repel the charge without first making it out against him. In the present case neither was any witness examined nor was any statement made by any witness tendered in evidence. The enquiry, such as it was, was made by Mr. Marshall or Mr. Nichols who were not only in the position of judges but also of prosecutors and witnesses.
There Was DO opportunity to the persons charged to cross-examine them and indeed they drew upon their own knowledge of the incident and instead cross-examined the persons charged. This was such a travesty of the principles of natural ,justice that the Tribunal was justified in rejecting the findings and asking the Company to prove the allegation against each workman de novo before it.
5. In the enquiry which the Tribunal held the Company examined five witnesses including Mr. Marshall, Mr. Nichols and Mr. Dhawan,who were the eye-witnesses. In view of the fact that the 170 enquiry was being made into an incident which took place four and a half years ago the Tribunal in assessing the evidence held that it would not accept that any workman was incriminated unless at least two witnesses deposed against him. Some of the workmen got the benefit of this approach and it is now contended that the Tribunal was in error in insisting upon corroboration before accepting the evidence of a single witness. Reference in this connection is made to s. 134 of the Indian Evidence Act (1 of 1872) which lays down that no particular number of witnesses shall in any case be required for the proof of any fact. It is not a question of an error in applying the Evidence Act. It is rather a question of proceeding with caution in a case where admittedly many persons were involved and the incident itself took place a very long time ago. The Tribunal acted with caution and did not act upon uncorroborated testimony. It is possible, that the evidence against some of the persons to whom the benefit has gone, might be cogent enough for acceptance, but the question is not one of believing a single witness in respect of any particular workman but of treating all workmen alike and following a method which was likely to eliminate reasonably chances of faulty observation or incorrect recollection. On the whole, it cannot be said that the Tribunal adopted an approach which made it impossible for the company to prove its case. It followed a standard which in the circumstances was prudent. We do not think that for this reason an interference is called for. Since no other point was argued the appeal of the Company in respect of the ten workmen, who were alleged to be concerned in the occurrence of January 18, 1956, must be dismissed.
6. This brings us to the consideration of the three special cases. They concern Dasarath Barick (No. 25), Lea Bichu (No. 26) and Nester Munda (No. 27). Dasarath Barick was said to have threatened the oyal workers and to have prevented them from work on March 15, 1956. Lea Bichu was said to have forced the chowkidar to hand over the keys of the gate to him on the same day and to have locked the gate with a view to hampering the movement of workmen. The Tribunal held that the enquiry in both the cases was not a proper enquiry and the conclusion was not acceptable. Here, again no witness was examined in the enquiry to prove the two occurrences and even before the Tribunal there was no evidence against them except the uncorroborated testimony of Mr. Mar-shall. No worker was examined to prove that he was threatened by Dasarath Barick or to show that it was Lea Bichu who had taken the keys from the chowkidar and locked -the gate. In view of these circumstances the Tribunal was justified in not accepting the findings which proceeded almost on no evidence. We agree with the Tribunal that no case was made out before the Tribunal for the dismissal of Dasarath Barick and Lea Bichu.
In Sur Enamel and Stamping Works Ltd. v. The Workmen, reported in AIR 1963 SC 1914, apex court observed as under in para 4 :
4. In support of the appeal against this order Mr. Sen Gupta has urged that it was not open to the Industrial Tribunal to go behind the finding arrived at by the domestic' tribunal. He contended that the Tribunal was wrong in thinking that the rules of natural justice were not followed. It appears that ajoint enquiry was held against Manik and one Birinchi. Nobody was examined at this enquiry to prove the charges. Only Manik and Birinchi were examined. They ere., confronted with the reports of the supervisor and other persons made behind their backs and were simply asked why these persons would be making the reports against them falsely. It is not clear whether what they said was recorded. According to the inquiring authority they were "unable to explain as to why these persons would be making the reports against them falsely." In our opinion, it would be a misuse of the words to say that this amounted to holding of proper enquiry it has been laid down by this Courtina series of decisions that if an industrial employee's services are terminated after a proper domestic enquiry held in accordance with the rules of natural justice and the conclusions reached at the enquiry are not perverse the industrial tribunal is not entitled to consider the propriety or the correctness of the said conclusions. In a number of cases which have come to this Court in recent months, we find that some employers have misunderstood the decisions of this Court to mean that the mere form of an enquiry would satisfy the requirements of industrial law and would protect the disciplinary action taken by them from challenge. This attitude is wholly misconceived. An enquiry cannot be said to have been properly held unless, (i) the employee proceeded against has been informed clearly of the charges levelled against him,(ii) the witnesses are examined ordinarily in the presence of the employee-in respect of the charges, (iii) the employee is given a fair opportunity to cross-examine witnesses,
(iv) he is given a fair opportunity to examine witnesses including himself in his defence if he so wishes on any relevant matter, and
(v) the enquiry officer records his findings with reasons for the same in his report. In the present case the persons whose statements made behind the backs of the employees were used by the enquiring authority were not made available for cross-examination but it would appear that they were not even present at the enquiry.
It does not even appear that these reports were made available to the employee at any time before the enquiry was held. Even if the personswho made the reports had been present and the employee given an opportunity to cross-examine them, it would have been difficult to say in these circumstances that was a fair and sufficient opportunity. But in this case it appears that the persons who made the reports did not attend the enquiry at all. From whatever aspect the matter is examined it is clear that there was no enquiry worth the name and the Tribunal was justifies in 621 entirely ignoring the conclusion reached by the domestic Tribunal.
In Union of India & Ors. v. Hasmukhbhai P. Raijada, reported in 2004 (2) GLR page 921, Division Bench of this Court considered case wherein inquiry officer relied on report of preliminary inquiry and put questions to delinquent employee. It was held that inquiry officer found to have acted as Prosecutor and Judge. It was held that finding of inquiry officer was baseless and perverse. Relevant observations made by Division Bench of this Court in para 8 and 9 of judgment are reproduced as under:
8. The principle is well settled that if any material, documents or statements if obtained behind the back of the delinquent and relied upon by the authority, a reasonable opportunity ought to be given to the delinquent before collecting such material, documents and statements, otherwise, it amounts to violation of basic principles of natural justice. Therefore, the material which has been utilized and relied upon by the inquiry officer which has been obtained behind the back of the delinquent without giving any opportunity to the delinquent, in our opinion, such finding is baseless and perverse and vitiated as it violates basic principle of natural justice. Therefore, in reality, it is not an inquiry worth the name and it violates the principles of natural justice and also statutory service rules and therefore, the conclusion is the inquiry officer's report is not based upon any legal evidence and inquiry has not been conducted as per the Service Rules.
9. At this stage, we consider it just and proper to refer the observations of the Apex Court on the issue what is the real nature of inquiry in case of SUR ENAMEL AND STAMPING WORKS LTD V. THE WORKMEN reported in AIR 1963 SC 1914. The relevant observations made at pg.1916 of the aforesaid decision are reproduced as under :
"4. This attitude is wholly misconceived. An enquiry cannot be said to have been properly held unless, (i) the employee proceeded against has been informed clearly of the charges levelled against him,(ii) the witnesses are examined--ordinarily in the presence of the employee-in respect of the charges, (iii) the employee is given a fair opportunity to cross-examine witnesses, (iv) he is given a fair opportunity to examine witnesses including himself in his defence if he so wishes on any relevant matter, and (v) the enquiry officer records his findings with reasons for the same in his report. In the present case the persons whose statements made behind the backs of the employees were used by the enquiring authority were not made available for cross-examination but it would appear that they were not even present at the enquiry. It does not even appear that these reports were made available to the employee at any time before the enquiry was held. Even if the persons who made the reports had been present and the employee given an opportunity to cross-examine them, it would have been difficult to say in these circumstances that was a fair and sufficient opportunity. But in this case it appears that the persons who made the reports did not attend the enquiry at all. From whatever aspect the matter is examined it is clear that there was no enquiry worth the name and the Tribunal was justifies in entirely ignoring the conclusion reached by the domestic Tribunal."
Therefore, the inquiry report of the inquiry officer must be reasoned one because it affects the livelihood of the delinquent and it is likely to cast stigma against the delinquent. This aspect has been examined by the Apex Court in case of ANIL KUMAR V. PRESIDING OFFICER AND OTHERS reported in AIR 1985 SC 1121. Important observations made by the Apex Court in para-5 & 6 of the aforesaid decision are referred below:
"5.We have extracted the charge framed against the appellant. We have also pointed out in clear terms the report of the Enquiry Officer. It is well-settled that a disciplinary enquiry has to be a quasi enquiry held according to the principles of natural justice and Enquiry Officer has a duty to act judicially. The Enquiry Officer did not apply his mind to the evidence. Save setting out the names of the witnesses, he did not discuss the evidence. He merely recorded his ipse dixit that the charges are proved. He did not assign a single reason why the evidence produced by the appellant did not appeal to him or was considered not credit-worthy. He did not permit a peep into his mind as to why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant. An enquiry report in a quasi judicial enquiry must show the reasons for the conclusion. It cannot be an ipse dixit of the Enquiry Officer. It has to be a speaking order in the sense that the conclusion is supported by reasons. This is too well settled to be supported by a precedent. In Madhya Pradesh Industries Ltd. v. Union of India [1966] 1 SCR 466 : [AIR 1966 SC 671],this Court observed that a specking order will at best be a reasonable and at its worst be at least a plausible one. The public should not be deprived of this only safeguard. Similarly in Mahabir Prasad v. State of Uttar Pradesh [1971] 1 SCR 201 : [AIR 1970 SC 1302], this Court reiterated that satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appealed to the authority. It should all the more be so where the quasi-judicial enquiry may result in deprivation of livelihood or attach a stigma to the character. In this case the enquiry report is an order sheet which merely produces the stage through which the enquiry passed. It clearly disclosed a total non application of mind and it is this report on which the General Manager acted in terminating the service of the appellant. There could not have been a gross case of non application of mind and it is such an enquiry which ha found favour with the Labour Court and the High Court.
6. Where a disciplinary enquiry affects the livelihood and is likely to cast a stigma and it has to be held in accordance with the principles of natural justice, the minimum expectation is that the report must be a reasoned one. The Court then may not enter into the adequacy or sufficiency of evidence. But where the evidence is annexed to an order sheet and no correlation is established between the two showing application of mind, we are constrained to observe that it is not an enquiry report at all. Therefore, there was no enquiry in this case worth the name and the order of termination based on such proceeding disclosing non application of mind would be unsustainable."
29. In P. Arvindakshan v. State of Kerala, 2007 Lab IC page 3187, Kerala High Court observed as under in para 9 and 10:
9. The process of hearing, in the realm of administrative law, consists of not merely the officer carrying out the external process of sitting and apparently hearing a person, but it includes the actual listening, assimilation and reaching at the arguments advanced, which ultimately have to find reflected in the files. The application of mind to the written contentions and oral submissions, if any, at the personal hearing should find reflected in the decision. The way is, to assimilate them, to state them, to meet them, to uphold if acceptable, by stating reasons for the rejection. This is how an institutinoal decision making process has to work. This is all the more so because a decision of the nature of removal from service by way of dismissal or otherwise is one that could be subjected to review at the administrative realm and to judicial review and reasons are the foundations on which, a decision would stand. Even if the correctness of the reasons may not be gone into by the Courts in some cases, as if they sit in appeal, the Courts will always, as watch dogs of the Constitution, insist that reasons are stated for the decision. This is because stating reasons for a decision is itself an inbuilt requirement of the rule of fair hearing, which is one of the most essential components forming the foundation of the safeguards provided to a public servant under Article 311 of the Constitution.
10. Viewed in this angle, even if I were to accept the argumetns advanced by the learned Government Pleader that the petitioner had placed his objections to the enquiry report while he filed Ext. P8 reply to Ext.P6 show cause notice. I am afraid that there is nothing in Ext.P11, which reflects the consideration of such objections. The one line decision which I have extracted above from Ext.P11, is wholly insufficient to be called a decision with reasons. That order does not reflect consideration of the writ petitioner's case.
In NM Mandalia v. Bhavnagar Municipality, reported in 1984 (2) GLR page 837, this court observed as under:
These are some of the charges levelled against the petitioner in the charge sheet dated 24th January, 1978. From these charges, it becomes clear that one of the acts of misconduct alleged against the petitioner was that he made allegations against the Chairman of the Executive Committee on 18th October, 1976 (vide paragraph 2 of the chargesheet, Annexure H ). This charge could o bviously be supported on the complaint or statement of the Chairman of the Executive Committee. The inquiry was conducted by the Chief Officer of the Municipality and his report was submited to the Executive Committee. He Chairman (who was the person against whom allegations were made) participated in the Resolution which was passed on 10th March 1978. The resolution NO. 5814 bears the signature of the Chairman of the Executive Committee of the Municipality. It is, therefore, obvious that the Chairman was a party to the decision taken by the Executive Committee to terminate the services of the petitioner on the charges having been found proved at the said inquiry. There is, therefore, substance in the allegation that the Chairman of the Executive Committee was both a prosecutor and a Judge in that one of the allegations made in the chargesheet was that the petitioner had made certain accusations against the Chairman of the Executive Committee on 18th October 1976 and the Chairman took a decision whether or not to consider the services of the petitioner on the basis of the report submitted by the Chief Officer of the Municipality. He was clearly biased against the petitioner and he ought not to have participated in decision making because one of the grounds for termination of services was that the petitioner had made unfounded allegations against the Chairman of the Executive Committee. He was, therefore, disqualified from participating in decision making since he had complained about the behaviour of the petitioner against him and was clearly a witness to the inquiry. Such a decision taken by the Executive Committee to which the Chairman was himself a party can never be said to be an objective decision because the possibility of the decision having been coloured by the Chairman's bias towards the petitioner cannot be ruled out.
This Court had an occasion to consider identical question of interim order passed by Labour Court, Baroda in case of GSFC Ltd. Versus Industrial Tribunal and Anr. in Special Civil Application No. 9544 of 2009 on 13.4.2010 where order was passed by labour court wherein departmental inquiry has been held invalid and violative of the principles of natural justice. In said case also, learned Senior Advocate Mr. Kamalbhai Trivedi had argued matter on merits which merits were examined by this Court. This Court dismissed petition filed by petitioner company. Relevant discussion made by this Court from para 13 to 15 is quoted as under:
13. Apart from that, a preliminary contention raised by learned advocate Mr.Mankad that at this stage, this petition is not maintainable in view of decision of Apex Court in the case of the Cooper Engineering Ltd. v. P.P.Mundhe reported in AIR 1975 SC 1900. He also relied upon decision reported in the case of Ramshray Ramsukh Verma v. Reliance Industries Ltd. reported in 2004 III CLR 491 and in case of Diensh Mills Ltd. v. Kedarnath R. Pande reported in 1998 II CLR 480 and also decision of Division Bench of this Court in the case of DGP Windsor India Ltd. v. Jaswantbhai Bhagwandas Patel LPA No.655 of 2002 decided on 17.3.2003 where Division Bench of this Court has held that when such preliminary point has been decided by Labour Court or Industrial Tribunal while coming to conclusion that inquiry is vitiated, then petition filed by employer is not to be entertained and maintainable.
14. The aforesaid aspect has been examined by this Court in case of Rajkot Peoples Co-operative Bank Ltd. v. Bharatbhai Hazare reported in 2008 (3) GLR 1937. In that decision of this Court, the decision which has been relied upon by learned Senior Advocate Mr.Trivedi of a learned Single Judge reported in 2000 (1) GLR 562 has been considered by this Court. The relevant discussion are in Para.4, 5, 6, 8 and 9 are quoted as under :
4. Learned Advocate Mrs. Pahwa for the petitioner submits that the very same question was considered by this Court in Patel Filters Limited versus Barkatbhai V. Narsindani and another reported in 2000(1) GLR page 562 wherein she had been appearing for the respondent workman and raised all such contentions that the departmental inquiry was vitiated because lawyer was not permitted by the enquiry officer to defend the case of the workman in departmental inquiry and, therefore, departmental inquiry was held against the workman without help of the lawyer which has been held to be illegal and contrary to the principles of natural justice by the labour court. Said order was challenged by the employer Patel Filters Ltd. Before this Court by filing Special Civil Application NO. 6546 of 1999 which was decided by this Court on 1st October, 1999. She also submitted that the decision of the apex court in The Cooper Engineering Ltd. v.
P. P. Mundhe (1975-II- LLJ-379)= AIR 1975 SC page 1900 was cited before this Court and yet the Court has examined legality and validity of the order of the labour court holding that the inquiry is vitiated and ultimately, petition was allowed on the ground that the case of The Cooper Engineering Ltd. (supra) cannot be accepted as universal principle of law to be applied in all cases irrespective of its merits. She has placed reliance on para 7 of the said decision which is, therefore, reproduced as under:
7. I do agree the endeavour of the court should be to hear and decide all the issues arising in a matter simultaneously nor should a party be permitted to while away time by challenging the orders on preliminary issues and not permitting the court to decide the real issues. But this is not a case where the issue in question could have been decided along with other issues. The nature of the issue is such which has to be decided as a preliminary issue. This is the view taken by the Hon'ble Supreme Court in the matter of The Cooper Engineering Ltd. (supra). Ordinarily, the courts do not entertain petition against the decision on preliminary issues where such issues can as well be challenged after final adjudication. However, it can not be accepted as universal principle of law to be applied in all cases irrespective of its merits. In the present case, the issue raised is a clear question of law and the relevant facts are undisputed. Since the question does not raise disputed questions of facts, I feel the matter can be entertained against the decision on preliminary issue also and that is what I am inclined to do.
5. Learned Advocate Mr. Raval for the respondent submitted that in such circumstances, as per the view taken by the apex court in The Cooper Engineering Ltd. v. P. P. Mundhe (1975-II- LLJ-379), this order can be challenged by the petitioner after the final result, if it goes against the petitioner and at this stage, court should not interfere with the order and should refuse to interfere at this stage, because, otherwise, the proceedings will be held up and final adjudication will not be over within reasonable time because, according to him, respondent was dismissed from service on 13.3.2004.
According to him, more than four years have passed and if the matter will remain pending before this court and if the stay is granted by this court then, for another four to five years, the petition will remain pending in this court against such order of the revisional court. He submits that if the ultimate result goes against the petitioner, then, the petitioner can challenge such order of the labour court on all the grounds while challenging the order of the revisional court dated 16.2.2008 and, therefore, this petition cannot be entertained by this court.
6. I have considered the submissions made by the learned Advocate Mrs. Pahwa as well as Mr. Raval. I have also considered the observations made by this Court in aforesaid decision, para 7 in particular. However, it is necessary to consider the observations made in para 21 and 22 by the apex court in The Cooper Engineering Ltd. v. P. P. Mundhe (1975-II- LLJ-379). Observations made by the apex court in para 21 and 22 of the said judgment are reproduced as under:
21.
Propositions (4). (6) and (7) set out above are well-recognised. Is it, however, fair and in accordance with the principles of natural justice for the Labour Court to withhold its decision on a jurisdictional point at the appropriate stage and visit a party with evil consequences of a default on its part in not asking the Court to give an opportunity to adduce additional evidence at the commencement of the proceedings or, at any rate in advance of the pronouncement of the order in that behalf ? In our considered opinion it will be most unnatural and unpractical to expect a party to take a definite stand when a decision of a jurisdictional fact has first to be reached by the Labour Court prior to embarking upon an enquiry to decide the dispute on its merits. The reference involves determination of the larger issue of discharge or dismissal and not merely whether a correct procedure had been followed by the management before passing the order of dismissal. Besides, even if the order of dismissal is set aside on the ground of defect of enquiry a second enquiry after reinstatement is not ruled out nor in all probability a second reference. Where will this lead to? This is neither going to achieve the paramount object of the Act, namely, industrial peace, since the award in that case will not lead to a settlement of the dispute. The dispute, being eclipsed, pro tempore, as a result of such an award, will be revived and industrial peace will again be ruptured. Again another object of expeditious disposal of an industrial dispute (see S. 15) will be clearly defeated resulting in duplication of proceedings. This position has to be avoided in the interest of labour as well as of the employer and in furtherance of the ultimate aim of the Act to foster industrial peace.
22. We are therefore clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the labour court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the Labour Court. If it chooses not to adduce any evidence it will not be thereafter permissible in any proceeding to raise the issue. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter if worthy can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication.
8. It is necessary just to understand the industrial law which is not similar to civil law. The proceedings under industrial law which related to right to livelihood and therefore, certain restrictions are imposed by Apex Court in number of decisions. The dismissal or discharge order passed by employer challenged by workman under the industrial forum must have to be adjudicated by Labour Court under the machinery of Industrial Disputes Act, 1947. The dismissal or discharge may be based upon departmental inquiry or may not be based upon departmental inquiry. If the allegations are made against the workman and no departmental inquiry was conducted, then, employer can request the Labour Court to permit them to lead proper evidence before the Labour Court for proving charge against the workman. Once, departmental inquiry was conducted and dismissal order was passed, then, it is for the workman to raise contention against such departmental inquiry that it is vitiated because of no opportunity was given which violates basic principles of natural justice. The employer can defend his inquiry and mentioned it that departmental inquiry conducted against the workman is legal and valid. However, it is open for the employer to ask for opportunity in case if departmental inquiry is vitiated by Labour Court. The preliminary issue is that whether departmental inquiry is proper or not must have to be examined by Labour Court first as a preliminary issue. If preliminary issue decided by Labour Court either in favour of workman or in favour of employer. On both the occasions, either party can challenge it before High Court and can request this Court to entertain this petition and stay the further proceedings. Normally, this practice to challenge preliminary issue order to the higher forum adopted by employer with a purpose to obtain the stay against the further proceedings. Number of cases on having decision on preliminary issue, the further proceedings have been stayed by High Court pending before the Labour Court. Therefore, Apex Court, in various cases, in case of D.P. Maheshwari v. Delhi Administration reported in 1983 (Lab.I.C.) 1629, The Cooper Engineering Ltd., v. P.P. Mundhe reported in AIR 1975 SC 1900 = 1975-II-LLJ 379 and other cases, decided that not to entertain such challenge on preliminary issue on behalf of the employer and both the issues can be decided finally by the Labour Court and same can be examined by Labour Court on the basis of the evidence on record. The object of Industrial Disputes Act, 1947 must have to be achieved to have as early as possible final adjudication on the industrial dispute which maintain industrial peace between the workmen and employer and it may not give a cause of another industrial dispute during the pendency of reference before the Labour Court. Similarly, a preliminary issue relating to departmental inquiry result may come either way and either party is entitled to challenge it, but, in case of The Cooper Engineering Ltd., (supra), Supreme Court has, in terms, held that not to entertain such challenge by either party to the High Court either question of law may involved or not. The reason behind it that in case if inquiry is held to be legal and valid, then, workman can challenge the finding given by inquiry officer whether finding is baseless or perverse or not and thereafter, workman can request the Labour Court to consider his case under Section 11A of the Industrial Disputes Act, 1947 that whether punishment imposed by employer is proportionate to the misconduct in question or not. These two remedies are available with the workman i.e. to challenge the finding and (ii) to request the Labour Court to exercise the power under Section 11A of the Industrial Disputes Act, 1947. So, challenge to order passed by Labour Court on preliminary issue holding inquiry is legal and valid have no fruitful purpose or there is no justification by workman. Similarly, in case, if, departmental inquiry is vitiated in whatsoever reason including the question of law examined by Labour Court, the remedy is available to the employer to request the Labour Court to permit the employer to lead evidence or proving the charge against the workman before the Labour Court. If, employer is able to prove the charge by leading fresh evidence after inquiry is declared vitiated, then, Labour Court may confirm the dismissal order and challenge to order on preliminary issue that inquiry is vitiated becomes meaningless. If, employer satisfactorily proved the charge against the workman by leading fresh evidence, then, that order will relate back to the original order of dismissal. So, employer has not to pay a single rupee when he succeeds in proving the charge against the workman. Therefore, either way challenge by either party the order of Labour Court on preliminary issue, is, ultimate dependent upon the final outcome of reference, meaning thereby that, order passed on preliminary issue cannot be decided the result of reference or fat of reference, but, it merely gives remedy to workmen and employer on different angle, but, ultimately, workmen and employer are not sufferer if preliminary issue decided by Labour Court in respect to departmental inquiry, which can be challenged along with final adjudication. Therefore, this was the object in the mind of Apex Court which reflected in Para 21 of case of The Cooper Engineering Ltd., (supra) and on that basis, the ratio decided by Apex Court in case of The Cooper Engineering Ltd., (supra) in uncertain terms not to encourage the challenge by either party as there is no justification for finalasing the petition against the order passed by Labour Court on preliminary issue. The ratio is very clear and no exception is carved out or kept open by Apex Court which gives discretionary powers to High Court to interfere with an order on preliminary issue if question of law is involved. This is not a civil proceedings, but, this is purely special enactment having subject nature of a dispute and having special effect of order on preliminary issue decided by Labour Court. So, analogy of civil proceedings will not be applicable at all to the challenge of order passed by Labour Court on preliminary issue relating to departmental inquiry.
It is a duty of this Court to follow the binding precedent of Apex Court without interpreting such ratio by High Court or without exercising the discretionary power upon binding precedent, this Court must have to understand and apply the precedent under Article 141 decided by Apex Court without using any kind of discussion and using discretion, otherwise, it amounts to ignore the binding precedent of Apex Court by High Court.
15. Similar aspect has also been examined by this Court in the case of Ramshray Ramsukh Verma v. Reliance Industries Ltd., reported in 2004 III CLR
491. Relevant observations are in Para. 6 to 10 are quoted as under
:
6. Having noted the factual background of the rival contentions, if one adverts his attention to the legal issue involved in the group of petitions, one finds that the question of law which is required to be considered in the present group of petitions is whether at the interlocutory stage when the Labour Court or the Industrial Tribunal is deciding the question of legality and validity of the departmental inquiry conducted by the employer, interference is permissible and justified in a writ petition filed by the aggrieved party.
7. Discussion of this issue has to start with the decision of the Hon'ble Supreme Court in Cooper Engineering case (supra). In the said decision, the Hon'ble Supreme Court had specifically come to the conclusion that the Labour Court should decide as a preliminary issue whether the domestic inquiry has violated the principles of natural justice and in such a case, there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter if worthy can be agitated even after the final award. Para 22 of the said judgment reads as follows:-
"We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the labour court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer, there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the Labour Court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication."
As discussed earlier, the decision in Cooper Engineering (supra) was also relied upon by the Hon'ble Supreme Court in the decision in Karnataka State Road Transport Corporation (supra) with respect to the question regarding the stage at what the employer has to exercise its right to adduce additional evidence in justification of the action taken by the employer.
8. I also find that the learned single Judge of this High Court in a decision reported in 1998 (3) L.L.N. 795 (Dinesh Mills Ltd v. Kedarnath R. Pande) relying on the decision of the Hon'ble Supreme Court in the case of Cooper Engineering (supra) came to the conclusion that interference in exercise of powers under Article 226 and 227 of the Constitution would not be called for against the decision of the Labour Court which as a preliminary issue held that the domestic inquiry conducted by the employer was illegal and improper since either party canultimately challenge the same after final adjudication of the dispute. I also find that a Division Bench of this High Court also had taken a similar view in the judgment and order dated 17.3.03 passed in Letters Patent Appeal No.655 of 2002 in Special Civil Application No.2510 of 2001. In the said decision, the Division Bench also relying on the decision of the Hon'ble Supreme Court in Cooper Engineering case upheld the order of the learned single Judge refusing to entertain the petition against the interlocutory order passed by the Labour Court regarding the validity of the departmental inquiry conducted by the employer.
9. From the above decisions and in particular from the decision of the Hon'ble Supreme Court in Cooper Engineering (supra), one thing is clear that whenever the Labour Court or the Industrial Tribunal decides the validity of the departmental inquiry conducted by the employer at the interlocutory stage, writ petition challenging the said order would not be maintainable. The Hon'ble Supreme Court in Cooper Engineering (supra) observed that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision which is at a preliminary issue and the same can be agitated even after the final award. The Hon'ble Supreme Court had also observed that it will be legitimate for the High Court to refuse to intervene at that stage. The Hon'ble Supreme Court had also observed that the above observations are made to ensure that there is no undue delay in industrial adjudication.
10. Coming back to the facts of the individual cases, in Special Civil Application No.8754 of 2003, the order under challenge being that of the Industrial Court, deciding the validity of the departmental inquiry being at an interlocutory stage, no interference would be called for. I am unable to accept the contention of the leaned advocate Shri Shahani for the petitioner that the petition is required to be entertained since the Industrial Court also was dealing with a revision application of the respondent which in itself was challenging an interlocutory order passed by the Labour Court. Though it may be true that the Industrial Court itself was considering the order passed by the Labour Court at an interlocutory stage and that therefore itwould have been desirable if the Industrial Court had not entertained the revision petition, that by itself would not justify the exercise of powers under Article 226 and 227 of the Constitution of India. In the facts of the present case, since the underlying principle is to avoid further delay and to ensure speedy disposal of the industrial dispute, the order of the Industrial Court being at an interlocutory stage, it would be just and proper to refuse to exercise the jurisdiction under Article 226 and 227 of the Constitution of India in view of the above mentioned decisions. One more reason for coming to the said conclusion is that the petitioner had not filed any reply before the Industrial Court in response to the revision application filed by the respondent and even reading the order of the Industrial Court, the above contention does not appear to have been taken by the petitioner during the course of the arguments also. I am unable to accept the contention of the learned advocate for the petitioner that the Industrial Court in exercise of its powers under section 85 of the Bombay Industrial Relations Act could not have passed the order in question since the Industrial Court enjoys superintending powers over the Labour Courts and that therefore this is not a case of order having been passed without jurisdiction and in view of what is stated hereinabove I am not entertaining the petition on the ground that the order under challenge is an interlocutory order and the legality of the order passed by the Industrial Court is not examined. A somewhat peculiar situation arising in the present petition, however, is that the Industrial Court has by the impugned order already upheld the legality of the departmental inquiry conducted by the respondent though at an interlocutory stage. It is not in dispute that against the final order that may be passed by the Labour Court, appeal would lie to the Industrial Court. If the findings of the Industrial Court in the impugned order are not specified to be of interim nature, in the appeal the same would come in the way of the petitioner, in case ultimately the Labour Court decides the issue against the petitioner. To obviate this difficulty, it is provided that the decision of the Industrial Court under challenge, namely, the order dated 6th December 2001 would not in any manner come in the way of the petitioner in case the Labour Court ultimately decides against the petitioner and the petitioner is required to file appeal before the Industrial Court against the order of the Labour Court. Subject to these observations, I find that the petition is not required to be entertained.
32. How the Management is continuing the workman in legal fight against him upto highest forum for challenging orders passed by labour court so that ultimately poor workman who is not having means even to survive can ultimately surrender to their desire. Such practice adopted by management has been considered by apex court in case of DP Maheshwari versus Delhi Administration, 1983 (4) SCC page 293. In said decision, apex court has observed that in deciding preliminary issue and then making entire machinery in the industrial dispute derailed at the instance of employer. Relevant observations made in para 1 are reproduced as under:
1. It was just the other day that we were bemoaning the unbecoming devices adopted by certain employers to avoid decision of industrial disputes on merits. We noticed how they would raise various preliminary objections, invite decision on those objections in the first instance, carry the matter to the High Court under Art. 226 of the Constitution and to this Court under Art. 136 of the Constitution and delay a decision of the real dispute for years, sometimes for over a decade. Industrial peace, one presumes, hangs in the balance in the meanwhile. We have now before us a case where a dispute originating in 1969 and referred for adjudication by the Government to the Labour Court in 1970 is still at the stage of decision on a preliminary objection. There was a time when it was thought prudent and wise policy to decide preliminary issues first. But the time appears to have arrived for a reversal of that policy. We think it is better that tribunals, particularly those entrusted with the task of adjudicating labour disputes wheredelay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under Art. 226 of the Constitution stop proceedings before a Tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Art. 226 of the Constitution nor the jurisdiction of this Court under Art. 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from Court to Court for adjudication of peripheral issues, avoiding decision on issues more vital to them. Art. 226 and Art. 136 are not meant to be used to break the resistance of workmen in this fashion. Tribunals and Courts who are requested to decide preliminary questions must therefore ask themselves whether such threshold part-adjudication is really necessary and whether it will not lead to other woeful consequences. After all tribunals like Industrial Tribunals are constituted to decide expeditiously special kinds of disputes and their jurisdiction to so decide is not to be stifled by all manner of preliminaryobjections journeyingsup and down. It is also worth while remembering that the nature of the jurisdiction under Art. 226 is supervisory and not appellate while that under Art.136 is primarily supervisory but the Court may exercise all necessary appellate powers to do substantial justice. In the exercise of such jurisdiction neither the High Court nor this Court is required to be too astute to interfere with the exercise of jurisdiction by special tribunals at interlocutory stages and on preliminary issues.
33. In case of Pradeep Stainless India Pvt. Ltd. v/s. The Joint Commissioner of Labour, Chennai & Another, decided by High Court of Judicature at Madras in WP NO.3094 of 2010 and MP NO.1 of 2010 on 18.2.2010, aforesaid decision in DP Maheshwari v/s. Delhi Administration, (1983) 4 SCC 293 has been considered while observing as under from para 36 to para 40. :
36.Finally, it will not be out of place to state that the Supreme Court in D.P. Maheshwari v.
Delhi Admn., reported in (1983) 4 SCC 293 forewarned the High Courts from entering into the arena of deciding preliminary issues and then making the entire machinery in the industrial dispute derailed at the instance of the employers. In paragraph 1 of the said judgment, the Supreme Court had observed as follows:
1.It was just the other day* that we were bemoaning the unbecoming devices adopted by certain employers to avoid decision of industrial disputes on merits. We noticed how they would raise various preliminary objections, invite decision on those objections in the first instance, carry the matter to the High Court under Article 226 of the Constitution and to this Court under Article 136 of the Constitution and delay a decision of the real dispute for years, sometimes for over a decade. Industrial peace, one presumes, hangs in the balance in the meanwhile. We have now before us a case where a dispute originating in 1969 and referred for adjudication by the Government to the Labour Court in 1970 is still at the stage of decision on a preliminary objection. There was a time when it was thought prudent and wise policy to decide preliminary issues first. But the time appears to have arrived for a reversal of that policy. We think it is better that tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under Article 226 of the Constitution stop proceedings before a tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Article 226 of the Constitution nor the jurisdiction of this Court under Article 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from court to court for adjudication of peripheral issues, avoiding decision on issues more vital to them. Article 226 and Article 136 are not meant to be used to break the resistance of workmen in this fashion. Tribunals and courts who are requested to decide preliminary questions must therefore ask themselves whether such threshold part-adjudication is really necessary and whether it will not lead to other woeful consequences. After all tribunals like Industrial Tribunals are constituted to decide expeditiously special kinds of disputes and their jurisdiction to so decide is not to be stifled by all manner of preliminary objections and journeyings up and down. It is also worthwhile remembering that the nature of the jurisdiction under Article 226 is supervisory and not appellate while that under Article 136 is primarily supervisory but the court may exercise all necessary appellate powers to do substantial justice. In the exercise of such jurisdiction neither the High Court nor this Court is required to be too astute to interfere with the exercise of jurisdiction by special tribunals at interlocutory stages and on preliminary issues.
(Emphasis added)
37.The Supreme Court in the very same judgment gave a note of caution which is as follows:
We are clearly of the opinion that the High Court was totally unjustified in interfering with the order of the Labour Court under Article 226 of the Constitution....."
38.The Industrial Disputes Act is the only machinery provided for the workmen to have their grievance settled either by conciliation or by adjudication. There is no other third option open to the workmen. If attempt made by the management to thwart the proceedings by seeking a writ of prohibition, the very machinery will be jeopardized and the workmen will lose faith in the machinery created for the purpose of resolving the grievances of the workmen.
39.It will not be out of place to refer to a recent judgment of the Supreme Court in Harjinder Singh Vs. Punjab State Warehousing Corporation, in Civil Appeal No.587 of 2010 (arising out of SLP(C) No.6966/2009), dated 05.01.2010, wherein G.S.Singhvi, J. had observed as follows:
"23....It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employers # public or private."
40.A.K.Ganguly, J., in his concurring opinion had observed as follows:
"46.At this critical juncture the judges' duty, to my mind, is to uphold the constitutional focus on social justice without being in any way mislead by the glitz and glare of globalization."
34. In case of A.S. Razvi v. The Divisional Engineer, Telegraphs, Ahmedabad and Others 1964 (5) GLR 175,Division Bench of this Court observed as under in para 11 and 12:
11.
The cases cited by Mr. Daru and those referred o in those cases show that the cardinal principle of administration of justice is that no person shall be a Judge in his own cause. The principle applies not only to the regular Courts which administer justice, but, it applies also to quasi judicial tribunals which are also required to act judicially. The principle applies not only in a case where the Judge or the adjudicator is himself the prosecutor or the suitor, but it applies also to all those cases where the Judge or the adjudicator is so situated with reference to the lis that there is a real likelihood of bias taking place in the final decision of the case. The principle extends even to those cases where, though the Judge or the adjudicator is not personally interested in the matter, but he is so situated with reference to the matter or any of the parties to the dispute that a reasonable apprehension is likely to arise in the mind of any of the disputants and that is not likely to get justice at the hands of the judge or the judicature. Thus, where the judge or the adjudicator appears as a witness in the cause, this principle has been applied. The principle emerges from the fact that the judge or the adjudicator has a duty to act judicially. In the eye of law, a person is qualified to be a judge or an adjudicator and a disqualified from being a judge or an adjudicator if he has a bias in the dispute which he is called upon to adjudicate. The seat of the Judge or the adjudicator is held so sacrosanct that it cannot be allowed to be occupied by any one unless and until he is qualified to be a Judge or adjudicator and a person, who has a bias in the lis, is totally disqualified and is incompetent to occupy such sacred seat. The principle is of such vital and fundamental importance that, in cases where the judicial Tribunal consists of more than one individual, if the vice of bias attaches to any one of them, it attaches to the Tribunal as a whole and whole of the proceeding is vitiated. Such is the conclusion of law even in those cases where it can be established that, though the member of the Tribunal had sat in the Tribunal, he had not taken any part in its deliberations, or if he had taken any such part, he had not participated in the voting. The principle applies even if it can be demonstrated that the person suffering from bias was in helpless minority and could have influenced the view of the majority. The principle emerges from the fact that the disqualification of a Judge or an adjudicator results in the vitiation of the whole proceeding before him and demands that his order should be quashed and set aside. The proceeding being void, the Court does not paused to enquire whether the order passed or decision arrived at is right, nor does it pause to consider whether a qualified Judge or an adjudicator would have passed the same order or come to the said decision. The decision having been arrived at by a disqualified person is no decision in the eye of law and even if it happens to be a correct decision in the opinion of the Court before which the decision is brought, the same deserves to be set aside because a disqualified person has no jurisdiction to pass even a correct order or record a right decision. The law does not cast any aspersion on the disqualified person, nor does it enquire whether the disqualified person was so mentally outfitted that, though he possessed a bias, he was capable of reaching the right or correct decision. Theoretically, it is possible to say that holiness, piety or a high sense of duty may endow a person with the rare gift of deciding correctly a case even against himself. But the aforesaid principle does not take into account such rare gifts. The law of views the matter entirely on the footing that an average individual is subject to human frailties, and it basis itself on the fact that a person, endowed with ordinary qualities and subject to weaknesses, to which human flesh is heir to, is not likely to maintain that mental equipoise, open mindedness and fair play, which are the true badges of a Judge or an adjudicator. The mind of a Judge or an adjudicator must be always pure so that the movement the law feels that a Judge or an adjudicator is so situated with a reference to a cause that the stream of his thought is likely to be a polluted by personal or extraneous considerations or, as stated by Lord Cranworth, L.C. in Ranger V/s. Great Western Railway Company (1854) 5 House of Lords Cases 72, the Judge or the adjudicator is not likely to indifferent, it concludes that the cause is one which cannot be entrusted to the person suffering from such a disqualification, the above principle has been enunciated to uphold the purity of administration of justice. It forms the very bed-rock of judicial administration in the law of England and in the law of this country. In English Jurisprudence, the principle has been applied since ancient times, in broom's legal maxims, 9th Edition at Page 81 it is stated that as far as in the Reign of James Ist the Judges has solemnly adjudged that the Kind cannot take any cause, whether civil or criminal, out of any of his Courts and give judgment upon it himself. In England, the principle is of such vital importance that the decrees passed by the highest judicial authority were set aside on the basis of that principle. In the case of Dimes V/s. Grand Junction and Canal Co., Canal Company were set aside by the House of Lords on the ground that the learned Lord was a share-holder in the company. In doing so, Their Lordships made the following observations which are well worth quoting :
It is of last importance, that the maxim that no man is to be judge in his own cause should be held sacred. And that is not to be confined to a cause in which is a party. But applies to a cause in which he has an interest. We have again and again set aside the proceedings in inferior Tribunals, because an individual, who had an interest in a cause, took part in decision. And it will have a most salutary effect on these Tribunals when it is known that this High Court of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law and should be set aside.
12. Bearing the aforesaid principle in the mind, we have to consider whether on the facts of the present case, all or any of the aforesaid principle has been violated. Respondent No.1 undoubtedly cannot be put in the position of either a prosecutor or a suitor in the matter of the departmental proceedings started against the petitioner. However, having regard to the fact that the petitioner had taken upon himself and was required to determine the truth or otherwise or allegations which were made against himself, there cannot be any doubt that respondent No.1 was so situated with reference to the departmental inquiry that he forfeited his qualifications to be an adjudicator herein. Without meaning any disrespect to respondent No.1, it is safe to say that, he will be unable to hold the scales even, or as Lord Cranworth, L.C. in Ranger V/s. Great Western Railway Co., (1854) 5 H.L.C. 72 stated that he will not be so indifferent to the cause that he will be able to give a just decision on petitioner's allegations. In order to decide the dispute, it is quite clear that respondent No.1 will have to consider whether the allegations of petitioner that he was corrupt and that he was corrupt minded were true or not and knowing as we do the human nature, and ordinary person cannot be accepted to reach a just conclusion on such a subject if he himself has to decide such a question which effects his own character. In our judgment, there is no doubt whatsoever that respondent No.1 is so situated with reference to the dispute raised by the petitioner that there was a real likelihood of bias being exhibited by respondent No.1. Therefore, in our judgment, in the present case, respondent No.1 was disqualified to hold the inquiry and the order passed by him deserves to be set aside on that ground.
36. In case of Gujarat State Road Transport Corporation v. Kantilal Nandlal Dave and Others 1992 (1) GLH 463, this Court observed as under in para 14 to 17:
14. It transpires from the record of the enquiry proceedings that the delinquent did not volunteer to give any oral testimony in the enquiry proceedings. It may be mentioned at this stage that he had one union representative as his defence assistant in the enquiry proceedings. If at all the delinquent wanted to give any oral testimony, his chief examination could have been recorded by his defence assistant. The so-called statement of the delinquent at Exh.24 shows hat no chief examination of his is taken. What is mentioned therein is that the delinquent was questioned by the Enquiry Officer in presence of the former's defence assistant. It would mean that the delinquent was required to give answers to the questions put to him by the Enquiry Officer. This makes one thing clear that the so-called statement at Exh.24 can by no stretch of imagination be said to be his oral testimony in the enquiry proceedings.
15. The question then arises whether or not the Enquiry Officer could have recorded his explanatory statement in the manner it is recorded by the Criminal Court under Section 313 of Cr.P.C., 1973 on completion of the recording of the prosecution evidence. As aforesaid, the only provision made in that regard is in Clause (k) of para 5 of the Appeal Procedure. Thereunder, the Enquiry Officer is invested with the limited power of giving a further opportunity to the delinquent of making a written or oral statement if desired by him. It would mean that after completion of recording the evidence, the Enquiry Officer has to ascertain from the delinquent whether or not he has to say something more with respect to the material on record. If the delinquent so desires, the option is given to him to make an oral or written statement in that regard. It thus becomes clear that such statement to be given by the delinquent after completion of the recording of the evidence should be out of his volition. It is not open to the Enquiry Officer to compel him to give any such statement. If the Enquiry Officer does so, even if, be in the nature of seeking explanation of the delinquent with respect to the material on record pointing the finger of guilt against the delinquent, the Enquiry Officer can be said to be transgressing his limits laid down in Clause (k) of para 5 of the Appeal Procedure.
16. In the instant case, what transpires from the purported statement at Exh.24 recorded by the Enquiry Officer in the enquiry proceedings is that the Enquiry Officer has cross-examined the delinquent with respect to certain material on record. This it was certainly not open to him. Shri Sen for the Appellant has failed to point out any provision in the Appeal Procedure enabling the Enquiry Officer to under take such task. If the Enquiry Officer cross-examines the delinquent under the guise of recording his statement (which it would not be open to him to do under the Appeal Procedure), he dons the robe of the prosecutor while keeping the robe of the judge on his shoulder. It is a settled principle of law that no person can be both a prosecutor and a judge. If a person tries to be both, he can be said to biased in conducting the enquiry proceedings. It is a well-known principle of law that a biased person is disqualified from conducting such enquiry proceedings. That is a settled principle of natural justice.
17. In view of my aforesaid discussion, I am of the opinion that the Enquiry Officer performed he function of the prosecutor as well besides performing the function of the judge designed to carry the enquiry proceedings to its logical end. His such an approach was in contravention of the basic principle of natural justice to the effect that no person can be both a judge and a prosecutor. This approach on the part of the Enquiry Officer has vitiated the enquiry proceedings. It culminated into the impugned order of dismissal at Exh.32. Any decision or order based on any illegal and invalid proceedings has to be branded null and void. I am therefore of the opinion that the order dismissing the delinquent from service at Exh.32 cannot be sustained in law and it is null and void and of no consequence or effect whatsoever.
37. In view of the aforesaid observations and discussions made by this court after considering entire inquiry and also considering contentions raised by learned Advocate Mr. Naik, according to my opinion, labour court has rightly examined preliminary contention and point raised by workman and has rightly come to conclusion that inquiry is vitiated and for that, labour court has not committed any error which would require interference of this court in exercise of powers under Article 227 of Constitution of India.
38. Recently apex court has considered scope of Article 227 of Constitution of India in case of State of Haryana v. Manoj Kumar reported in 2010 AIR SCW 1990 decided on 9th March 2010. The relevant Para 22 to 29 are quoted as under:
22. The appellants urged that the jurisdiction of the High Court under Article 227 is very limited and the High Court, while exercising the jurisdiction under Article 227, has to ensure that the courts below work within the bounds of their authority.
23.
More than half a century ago, the Constitution Bench of this court in Nagendra Nath Bora and Another v. Commissioner of Hills Division and Appeals, Assam & Others AIR 1958 SC 398 settled that power under Article 227 is limited to seeing that the courts below function within the limit of its authority or jurisdiction.
24. This court placed reliance on Nagendra Nath's case in a subsequent judgment in Nibaran Chandra Bag v. Mahendra Nath Ghughu AIR 1963 SC 1895. The court observed that jurisdiction conferred under Article 227 is not by any means appellate in its nature for correcting errors in the decisions of subordinate courts or tribunals but is merely a power of superintendence to be used to keep them within the bounds of their authority.
25. This court had an occasion to examine this aspect of the matter in the case of Mohd. Yunus v. Mohd. Mustaqim & Others (1983) 4 SCC 566 . The court observed as under:-
"The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority,"
and not to correct an error apparent on the face of the record, much less an error of law. for this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision."
26. This court again clearly reiterated the legal position in Laxmikant Revchand Bhojwani & Another v. Pratapsing Mohansingh Pardeshi (1995) 6 SCC 576. The court again cautioned that the High Court under Article 227 of the Constitution cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.
27. A three-Judge Bench of this court in Rena Drego (Mrs.) v. Lalchand Soni & Others (1998) 3 SCC 341 again abundantly made it clear that the High Court cannot interfere with the findings of fact recorded by the subordinate court or the tribunal while exercising its jurisdiction under Article 227. Its function is limited to seeing that the subordinate court or the tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and re-appreciating it.
28. In Virendra Kashinath Ravat & Another v. Vinayak N. Joshi & Others (1999) 1 SCC 47 this court held that the limited power under Article 227 cannot be invoked except for ensuring that the subordinate courts function within its limits.
29. This court over 50 years has been consistently observing that limited jurisdiction of the High Court under Article 227 cannot be exercised by interfering with the findings of fact and set aside the judgments of the courts below on merit.
39. Therefore, in view of that, contentions raised by learned Advocate Mr. Naik for petitioner cannot be accepted and hence same are rejected. There is no substance in this petition. Therefore, this petition is dismissed accordingly.
(H.K.RATHOD, J.) Vyas Top